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Federal Judge Strikes Down Ohio Marriage-Recognition Ban as “Facially Unconstitutional”

Posted on: April 14th, 2014 by Art Leonard No Comments

U.S. District Judge Timothy S. Black, who ruled in December that Ohio’s ban on recognizing same-sex marriages from other states was unconstitutional in connection with recording marital status and surviving spouses on death certificates, today expanded his ruling in the context of a second lawsuit brought by married same-sex couples seeking recognition for purposes of birth certificates. However, Judge Black didn’t restrict his ruling to that issue, instead finding that Ohio’s recognition ban was unconstitutional in all its applications. Judge Black temporarily stayed his ruling to give the plaintiffs time to file a written response to the state’s request that it be stayed pending appeal to the 6th Circuit Court of Appeals, and promised to rule expeditiously on this question, while stating his “inclination” to require his ruling to go into effect for the four plaintiff couples. [Additionally noted: On April 16, Judge Black issued an order, granting the state’s motion for a stay, except for the four plaintiff couples, as to whom he directed that the state issue birth certificates for their children showing both spouses as parents.]

The plaintiffs, four same-sex couples represented by Alphonse Gerhardstein, Jacklyn Gonzales Martin and Jennifer Lynn Branch of Gerhardstein & Branch Co. LPA, were all married in other states. The three lesbian couples are Ohio residents, and each couple is expecting a child to be born in the next few months, conceived through donor insemination. For purposes of birth certificates, they want these births to be treated the same way Ohio treats other births to married couples where the wife becomes pregnant through donor insemination. In such cases, Ohio issues a birth certificate identifying the mother’s spouse as the child’s other legal parent, but the state’s Health Department, under the direction of named defendant Lance Himes, refuses such equal treatment, claiming that the state’s Marriage Amendment and marriage-recognition statutes prevent it. The fourth couple, two gay men in New York who adopted an Ohio-born child, want Ohio to follow its statutory procedure for issuing new birth certificates for children adopted in other states, which requires recording the names of both parents on the birth certificate. In this case, the men jointly adopted the child in a New York proceeding, and ask that Ohio recognize that adoption and their parental status.

Judge Black pointed out that Ohio used to follow the procedure requested by the male couple, Joseph Vitale and Robert Talmas. However, when the current Republican administration took office in January 2011, Governor Bill Kashich and Attorney General Mike DeWine ordered that the Health Department cease recognizing out-of-state same-sex marriages for this limited purposes, even though the same-sex couple and their child reside out of state and all that Ohio was being asked to do was to issue a substitute birth certificate for the child.

Unsurprisingly, Judge Black found that nothing has happened since his December decision to change his legal analysis. Indeed, he noted on the second page of his decision “ten out of ten federal rulings since the Supreme Court’s holding in United States v. Windsor — all declaring unconstitutional and enjoining similar bans in states across the country.” Furthermore, he wrote, “The pressing and clear nature of the ongoing constitutional violations embodied by these kinds of state laws is evidence by the fact that the Attorney General of the United States and eight state attorneys general have refused to defend provisions similar to Ohio’s marriage recognition bans.”

This led Judge Black to a sweeping conclusion: “This court’s analysis in [its December ruling] controls here, and compels not only the conclusion that the marriage recognition ban is unenforceable in the birth certificate context, but that it is facially unconstitutional and unenforceable in any context whatsoever.” Judge Black’s opinion is written in emphatic terms, and to drive home his key points, he issued a slip opinion where those points are in bold, underlined type.

He rooted his ruling in prior decisions by the United States Supreme Court, and seemed at times to be responding as much to arguments being raised by marriage equality opponents in lawsuits from other states as to the argument raised by Ohio’s attorneys. For example, quoting from a 1990 U.S. Supreme Court ruling, Hodgson v. Minnesota, “the regulation of constitutionally protected decisions, such as where a person shall reside or whom he or she shall marry, must be predicted on legitimate state concerns other than disagreement with the choice the individual has made,” or, referring to several Supreme Court decisions, he wrote that “the fundamental right to marry is available even to those who have not traditionally been eligible to exercise that right.” He concluded that “the right to marriage is a fundamental right that is denied to same-sex couples in Ohio by the marriage recognition bans.” He found that denial of this right also affected another fundamental right, the right to parental authority. “U. S. Supreme Court rulings, reflected in state laws, make clear that these parental rights are fundamental and may be curtailed only under exceptional circumstances,” he wrote.

While cases involving state abridgement of fundamental rights are usually analyzed using the “strict scrutiny” test, under which the challenged statute is presumed unconstitutional and the state has the burden of showing that the statute is necessary to achieve a legitimate and compelling state interest, Judge Black decided to treat this as a heightened scrutiny case, using a balancing approach between the interests of the plaintiffs and the state. He described the many burdens that denial of recognition places on married same-sex couples — and particularly those raising children, as in this case — and found that the Supreme Court’s decision last June in U.S. v. Windsor addresses the issue directly. In that case, Justice Anthony M. Kennedy described same-sex marriages being denied recognition under federal law as “second-tier” marriages, and wrote, “The differentiation demeans the couple, whose moral and sexual choices the Constitution protects,” and that “it humiliates tens of thousands of children now being raised by same-sex couples,” a point that Judge Black emphasized with underscored bold print.

By contrast, he found that the interests that counsel for Ohio had identified just did not measure up. He particularly dismissed the idea that Ohio’s marriage ban enjoyed some sort of special legitimacy because it was enacted as a constitutional amendment by the voters. “In particular,” he wrote, “the Court notes that given that all practicing attorneys, as well as the vast majority of all citizens in this country, are fully aware that unconstitutional laws cannot stand, even when passed by popular vote, Defendants’ repeated appeal to the purportedly sacred nature of the will of Ohio voters is particularly specious.” He also responded to the state’s argument that the Supreme Court in Windsor had recognized that regulation of domestic relations in the U.S. has traditionally been an exclusive function of the states by pointing out that such state regulation is “subject to constitutional guarantees.”

Thus, he found, the state’s refusal to recognize same-sex marriages performed elsewhere “violates the substantive due process rights of the parties to those marriages because it deprives them of their rights to marry, to remain married, and to effectively parent their children, absent a sufficient articulated state interest for doing so.”

Judge Black also found an equal protection violation. He pointed out that 6th Circuit equal protection precedents involving gay litigants pre-dated the Windsor decision, which required deciding anew whether sexual orientation discrimination should invoke heightened scrutiny. Referring back to his earlier decision, he found that heightened scrutiny was the correct approach, noting in passing the 9th Circuit’s conclusion on this point in its jury selection ruling in January. “Here,” he wrote, “Defendants’ discriminatory conduct most directly affects the children of same-sex couples, subjecting these children to harms spared the children of opposite-sex married parents. Ohio refuses to give legal recognition to both parents of these children, based on the State’s disapproval of their same-sex relationships.” But this clearly runs afoul of another well-established Supreme Court precedent, Plyler v. Doe, for the proposition that “disparate treatment of children based on disapproval of their parents’ status or conduct violates the Equal Protection Clause.” And, he found, the state had no rational basis for imposing such a discriminatory policy, much less an important policy reason that would be sufficient to withstand heightened scrutiny.

In a lengthy textual footnote, Judge Black also noted that Ohio’s refusal to issue an appropriate new birth certificate to the New York couple who had adopted an Ohio child could be held to violate the Constitution’s Full Faith and Credit Clause. An adoption order is a judicial order that is entitled to full faith and credit, and Judge Black identified as an outlier the 5th Circuit ruling in a Louisiana case suggesting that a federal court could not order a state to issue such a birth certificate.

Ohio has already appealed Black’s earlier ruling, Obergefell v. Wymyslo, to the 6th Circuit, and Governor Kasich and Attorney General DeWine have already announced that they will appeal this ruling as well, so the immediately pressing question is whether Black will stay his ruling. In a footnote at the end of his opinion, he wrote that he is “inclined” to stay the ruling on facial unconstitutionality, which would be consistent with what other federal trial judges have been doing since the Supreme Court stayed the order in the Utah marriage case. However, noting the “imminent births of their children and other time-sensitive concerns,” he was also inclined not to stay the order as it applied to the four plaintiff couples in the case. He promised to rule promptly after receiving final briefing from the parties on the stay issue. [On April 16, he followed his inclinations, as noted above, staying the ruling pending appeal except as to the four plaintiff couples, for whom the Order goes into effect. One hopes that the Ohio government defendants will have the good sense not to appeal this order.]